Citation Nr: 0205148
Decision Date: 05/24/02 Archive Date: 06/03/02
DOCKET NO. 95-28 891 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Whether new and material evidence has been presented or
secured to reopen a claim of entitlement to service
connection for post-traumatic stress disorder (PTSD), and if
so, whether service connection is warranted.
REPRESENTATION
Appellant represented by: Robert V. Chisholm, Attorney
at Law
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
William L. Pine
INTRODUCTION
The appellant had active service from August 1966 to June
1968 and from August 1968 to August 1972.
In April 1988 the Board of Veterans' Appeals (Board) affirmed
a disallowance by the Veterans Administration (now,
Department of Veterans Affairs) (VA) New York, New York,
regional office (RO) of the appellant's claim of entitlement
to service connection for PTSD. In March 1991 the Board
affirmed a rating decision finding the appellant had not
submitted new and material evidence creating a new factual
basis to reopen and allow a previously disallowed claim for
service connection for PTSD. This appeal is from a March
1994 New York, New York, RO decision that the previously
disallowed claim for service connection for PTSD could not be
reopened because new and material evidence in the claim had
not been presented or secured. The Chicago, Illinois, RO how
has jurisdiction of the claim.
The Board issued a decision in this appeal in July 1998.
Subsequently, the United States Court of Appeals for the
Federal Circuit held invalid a standard of legal analysis the
Board applied in the July 1998 decision. Hodge v. West, 155
F.3d 1356 (Fed. Cir. 1998). In December 1998, the United
States Court of Veterans Appeals (now the United States Court
of Appeals for Veterans Claims) (Court) granted VA General
Counsel's unopposed motion to vacate and remand the Board's
decision for the Board to apply the law as articulated in
Hodge.
In July 1999, the Board issued another decision in this
appeal, which the appellant appealed to the Court. In June
2001, the Court remanded the case to the Board for another
decision, taking into account the Veterans Claims Assistance
Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000)
(VCAA) and all other applicable laws and regulations.
The Court's order also ruled that the appellant could submit
additional evidence and argument in support of his claim.
The Board so informed him of that right in a letter of
December 2001. The veteran has responded through counsel.
It appears from a November 1995 statement that the appellant
seeks to reopen his claim for service connection for
schizophrenia. That matter is referred to the RO for
appropriate action.
FINDINGS OF FACT
1. The Board of Veterans' Appeals denied the appellant's
claim for service connection for PTSD in March 1991.
2. A lay statement not of record in 1991 is so significant
that it must be considered in order to fairly decide the
merits of the claim.
3. The appellant's testimony regarding alleged stressors
experienced in service is incredible.
4. The October 1998 lay statement purporting to corroborate
testimony of the appellant is incredible and does not
establish that any stressor occurred.
5. The appellant did not engage in combat with the enemy and
he did not sustain psychic trauma in service.
6. PTSD may not be associated with the veteran's active
military service.
CONCLUSIONS OF LAW
1. The decision of the Board of Veterans' Appeals of March
1991 denying service connection for PTSD is final.
38 U.S.C.A. §§ 7103(a), 7104(b) (West 1991 & Supp. 2001);
38 C.F.R. §§ 3.160(d), 20.1100 (2001).
2. New and material evidence has been presented since March
1991, and the claim of entitlement to service connection for
PTSD is reopened. 38 U.S.C.A. § 5108 (West 1991).
3. PTSD was not incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1154(b) (West 1991 & Supp. 2001);
38 C.F.R. §§ 3.303(a), 3.304(d), (f) (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Whereas all evidence of record must be considered to
determine whether a claim must be reopened, see Evans v.
Brown, 9 Vet. App. 273, 282-84 (1996), that evidence is
detailed below. Because the time of submission is a
pertinent matter in cases seeking to reopen previously
disallowed claims, the evidence is summarized in groupings of
documents that were of record at the time of each prior Board
decision, and chronologically by order of creation within
those groups.
I. Background
In June 1968, the appellant applied for VA disability
compensation for a nervous disorder. He reported having
psychiatric treatment at Fort Ord in November 1966.
A VA summary of hospitalization in June and July 1968 showed
a diagnosis of liver disease, with admission 10 days after
separation from service. The appellant reported he was a
cook in Vietnam while stationed in the central highlands near
Pleiku.
The appellant's DD Form 214 for service August 1966 to June
1968 showed the veteran's only training in addition to basic
training was an 8-week food service course. His military
operational specialty (MOS) was shown as 94B20, cook. He had
at that time 11 months, 24 days of foreign and/or sea
service. The form showed the appellant was entitled to
several service awards, none of which were for participation
in combat against hostile forces.
The appellant's DD Form 214 for the period of service August
1968 to August 1972 showed his military specialty as 94B20,
and Vietnam service from September 22, 1968, to September 21,
1969. The form showed the appellant was entitled to several
service awards, none of which were for participation in
combat against hostile forces.
Service health and clinical records received in September
1968 and July 1975 were found consolidated in the claims
folder. A May 1966 report of examination on entrance was
negative for any psychiatric finding. A June 1968 medical
history report completed for separation from service was
marked affirmatively to show current or past "nervous
trouble." A medical examination report completed the same
date was negative for psychiatric findings. An August 1968
medical history report completed for reenlistment was marked
affirmatively to show current or past "nervous trouble."
An examination report of the same date was negative for
psychiatric findings.
A summary of hospitalization at Montgomery VA hospital in
June 1975 showed a diagnosis of drug abuse, alcohol,
marijuana. The appellant reported having mental problems
since he was in the Army. Upon transfer to Tuskegee VA
hospital, also in June 1975, the diagnosis was drug abuse and
inadequate personality disorder. Historically, he said he
was nervous in the service.
On readmission to Tuskegee VA hospital from June to August
1975, the diagnosis was anxiety neurosis associated with
prolonged drug dependence. Some evidence of a thought
disorder was observed during hospitalization. On readmission
from September 1975 to January 1976 the diagnosis was anxiety
neurosis. The appellant complained of headaches, fainting,
nervousness, insomnia, hearing voices, and seeing things.
On admission to Hines VA Medical Center (VAMC) in November
1976 the diagnosis was schizophrenia, paranoid type. He
reported a long history of nervous problems, beginning in
1967 while in the service. He denied any prior alcohol or
drug abuse. He complained of some night awakening and
nightmares, which were calmed with Thorazine. He was found
under the influence of alcohol on two occasions while
hospitalized and was discharged to outpatient care.
On VA hospitalization at West Side VAMC from December 1976 to
January 1977 the appellant gave a history of psychiatric
diagnosis during a tour of duty in the service from 1970 to
1973. He said he had auditory hallucinations in the service
and he gave a subsequent history of hallucinations,
argumentativeness and suspiciousness augmented by alcohol.
He sought hospitalization currently because of increased
suspiciousness and bizarre behavior. There were no
hallucinations during hospitalization. He returned from a
pass intoxicated and uncooperative, with considerable
paranoid ideation and hostile behavior. He was discharged to
resume work and outpatient treatment.
On VA examination in February 1977, the examiner reported he
reviewed the appellant's VA file, noting hospital and
outpatient treatment records. The appellant denied using
alcohol since 1968. He reported nervousness since 1970. He
said that since 1968 he was often mixed up in his mind,
unable to think straight, and had difficulty concentrating.
He said people could read his mind and followed him around.
He reported having ideas of reference since 1968 or 1969. He
said he heard men's voices at night and voices of people who
were not there in the daytime. He expressed feeling guilt
about his military service. The diagnoses were
schizophrenia, paranoid type, as a maturation of previously
diagnosed anxiety neurosis; history of alcohol and drug
dependence.
In a December 1977 statement, the appellant reported he had
mental hygiene treatment in Vietnam from June to August 1969
at the 57th Medical Evacuation Hospital while assigned to the
1st of the 29th Maintenance, 1st Logistical Command at Camp
McDermott. In December 1977 the National Personnel Records
Center (NPRC), the official repository for records of
military personnel, provided additional service medical
records. A clinical record cover sheet showed that in August
1969 the appellant was assigned to the 129th Maintenance
Support Company and that month admitted directly to the 8th
Field Hospital because of habitual use of opium and
marijuana. He had been smoking 15 to 20 joints per day for
18 months and smoking or injecting opium daily and injecting
Methedrine about twice a week. The hospital record noted he
was employed as a cook at Nha Trang (MOS 94B20), with 26 1/2
months in Vietnam. The appellant admitted to using
barbiturates, LSD, and DMT prior to service. He said he used
drugs out of boredom. He denied addiction. The ultimate
diagnosis was drug habituation, opium and marijuana, chronic,
moderate, not line of duty, existed prior to service. He was
treated with Thorazine and Artane, had some withdrawal
symptoms, and was discharged from the hospital after four
days and returned to duty with a prescription for Thorazine.
On an August 1972 medical history completed for separation
from service, the appellant indicated prior or current
depression or excessive worry and nervous trouble. He
reported being nervous and depressed since being in the Army.
He stated he felt much better now that he was getting out.
The separation examination report was negative for
psychiatric findings.
In April 1978 the appellant testified at a VA hearing in a
claim for service connection for a nervous condition. He
denied neuropsychiatric problems prior to service. He
testified he entered the service immediately after high
school and first had psychiatric treatment in 1967. He said
he was told in outpatient treatment at Fort Ord that he had a
nervous condition. He said he had no nervous problems during
his first year in Vietnam when he was in the Central
Highlands. He said when he had outpatient treatment at Fort
Ord it was recommended by the commanding officer because he
was always in arguments with his superior noncommissioned
officers. When asked if he had any duties that might have
made him nervous he responded he was the cook. He said he
had been in the service about four months when he was treated
for nervousness.
The appellant was admitted to the Detroit Psychiatric
Institute from February to March 1980. The discharge summary
shows a diagnosis of paranoid schizophrenia.
In an August 1980 statement, the appellant's grandmother said
prior to military service the appellant had normal behavior
for a young man, not unduly drinking, smoking, swearing or
fighting. Since his return from the service, he had not
behaved in a normal manner. She stated she knew of no cause
for the deterioration unless it occurred during his
experience in the Vietnam War.
On VA hospitalization in June 1980, the appellant had extreme
looseness of association, hallucinations, and extreme anger.
He demanded discharge before finishing treatment. The
diagnoses were alcohol abuse, chronic; characterological
disorder with paranoid and infantile elements. On
readmission in August 1980, essentially the same diagnoses
were given.
On hospitalization at the Montrose, New York, VA hospital in
August 1981, the appellant complained of increased
nervousness, agitation, belligerence, auditory and visual
hallucinations, and paranoia since his private doctor had
changed his medication three weeks ago. The diagnoses were
paranoid schizophrenia; borderline personality disorder.
The appellant testified at a VA hearing in October 1981. A
corrected transcript from an audio recording with numerous
omissions is of record. The matter at issue, as clarified by
the appellant's representative, was service connection for
PTSD. The appellant testified he was in Vietnam for two
years, during which time he was a cook. The appellant stated
that in service he fought with and did not get along with
people and spoke to himself out loud. He stated he had no
nervous problems before service. He said nervous problems
began in 1967 or 1968 when he saw dead bodies carried out and
saw a friend hurt. Subsequently he testified that he did not
see his friend shot, but saw him about four days afterwards.
He stated he now had nightmares of these incidents,
occasionally became violent and was now under treatment with
Thorazine.
On VA examination in December 1981, the appellant reported he
had worked as a cook in Vietnam and had never been exposed to
battle conditions. The examiner noted documentation in the
appellant's VA claims folder of hospitalization in Vietnam
for heavy drug addiction, and of heavy alcohol addiction
since service. The appellant's main complaint was hearing
voices telling him he was being killed and persecuted. He
described vividly his preoccupation with persecution and the
idea someone will kill him. The examiner commented that
reasoning with him was not possible, and that he had hardly
any insight. The diagnosis was schizophrenia, paranoid type;
PTSD not found.
The appellant testified at a hearing before the Board in
January 1983. He stated he was treated with Librium at Fort
Ord, which he discontinued before he went to Vietnam, but he
was not told a diagnosis. He had no other treatment during
his first period of service. He reported VA hospitalization
after his first period of service, at which time he spoke
with the doctors about his nervous condition and Vietnam, but
there was no "nervous ward." He said the hospital records
showed he was there for a nervous condition and for
hepatitis, but no psychiatric diagnosis was made at the VA
hospital in 1968. He said he was not treated for psychiatric
complaints during his second period of service. He stated
that his first psychiatric treatment after service was at the
Tuskegee VA hospital in 1975. He said the diagnosis was for
paranoid schizophrenia, but the diagnosis in service in 1967
had been for anxiety. He said his problems happened in
Germany and he was an A-1 soldier before that. In Germany he
had a special court martial in 1972 and was put out of the
service, but he appealed and won. He said he now had the
same problems as in 1975. He denied having any problems
before service, when he had many friends. He stated that
since service he had many problems and no friends. He said
he had a change of attitude in 1969. When asked whether
anything specific in Vietnam made him start to get nervous,
he replied that working, bombing, war, and going outside the
gate became no problem because he had decided that if he was
going to die he would die, and being afraid or brave made no
difference. He stated he first heard voices after Vietnam,
in Germany. He stated that after the service he traveled
around, heard voices, and got into trouble and was locked up
in every state. He stated that in Vietnam doing drugs made
him feel better, and that he smoked some but never shot drugs
in his veins. He said he never had any nervous problems
during his first tour in Vietnam, and that he smoked
marijuana during his second tour, but not heavily, and he had
no psychiatric treatment in service after August 1969.
In May 1984 the appellant testified at a hearing before the
Board. A transcript of that hearing is not of record.
Records from July to August 1984 from Creedmore Psychiatric
Center show the appellant was admitted complaining of
auditory hallucinations, feeling that people were after him,
and fear that he might kill himself. He had been drinking
heavily prior to admission. The appellant was told that part
of his therapy had to include continued participation in a VA
Vietnam Veteran's treatment group and use of Thorazine. He
was allowed daily passes for attendance of the Vietnam
Veteran's group and failed to return from a pass. The
diagnoses were schizophrenia, paranoid type, chronic, with
acute exacerbation; alcohol abuse, episodic type.
In October 1984 the appellant sought voluntary admission at
Montrose VA Medical Center (MC) for drinking, drug abuse, and
PTSD. His last drug use had been a week prior to admission.
During hospitalization he denied hearing voices and he had
sleeping problems. He was uncooperative with treatment, had
multiple unauthorized absences, and was noted to have used
drugs and probably alcohol while hospitalized. He was
discharged irregularly for drug use and uncooperativeness.
The diagnoses were schizophrenia, paranoid type; rule out
PTSD.
A Montrose VAMC hospital summary from May 1985 showed the
appellant was admitted one day after discharge from the Fort
Hamilton clinic with alleged auditory hallucinations. He
demanded discharge against medical advice the next day. The
diagnosis was chronic undifferentiated schizophrenia. He was
readmitted from June to July 1985, attended by Dr. F. The
diagnoses were chronic paranoid schizophrenia, mixed
substance abuse, alcohol and marijuana; and antisocial
personality disorder. On readmission in July 1985, the
appellant obtained diagnoses of chronic paranoid
schizophrenia with acute exacerbation; mixed substance abuse;
and antisocial personality disorder, discharged against
medical advice.
In November 1985 the appellant testified at a VA hearing. He
reiterated his history of two periods of service in Vietnam
and denied alcohol or drug use prior to service. When asked
about incidents in Vietnam that he considered life
threatening, he spoke about the Tet offensive of November
1968 to January 1969, when he was under heavy fire. He said
the enemy overran Pleiku. He stated his MOS was truck
driver, transportation. He stated he was on a convoy from
Camp Holloway, and that if the Green Beret could not get
"them" out, "we would have to go in." He said he lost a
good friend, Sergeant D-----, who was hit five times with an
"AK." He stated he loaded dead and wounded. These things
were said to have happened from November 1967 to January
1968. He stated he was bombed while stationed at a firebase
at Camp Holloway, which was overrun by Viet Cong. He said
they held the camp for three days. He said he was a truck
driver on supply runs. He said he was shot at many times,
and the truck was hit, although he was not. He said he first
took drugs (LSD) at Fort Ord, and he used no alcohol before
service. He said he started drugs in Vietnam because he was
scared all the time. He stated he now had hyper-alertness,
startle responses, and inability to sleep; he awakened
screaming or in a sweat from nightmares of shooting and not
hitting anything. He reported feeling guilty and wishing he
was dead; he reported trying to kill himself. He reported
poor concentration. He said if he went out, it would be to a
party with his family, but he did not associate with
different people. He said he was first hospitalized in
Tuskegee VA Hospital (VAH) in 1974 after he got out of the
service, for fighting all the time for no reason. He said he
shot a man in Selma, but the police put him in treatment
rather than in jail. He stated he had flashbacks and trances
in which he was back in Vietnam, and he took drugs to deal
with his fear of combat. He reported treatment at Hines VAH
in 1975 or 1976. He stated he first heard of PTSD from Dr.
G. in Montrose VAH in 1980, who had explained that post-
traumatic stress was listed as paranoid schizophrenic stress
disorder. He said had answered 300 questions and been told
he had PTSD. He said Dr. F. at VA outpatient clinic (VAOPC)
in Brooklyn had diagnosed PTSD, but he "went off" on the
doctor and was not admitted to the stress program. He stated
he was hospitalized at St. Vincent's in August and September
1985, originally for alcohol treatment, then for PTSD. He
stated the Fort Hamilton VAMC in Brooklyn had diagnosed PTSD,
as had Montrose VAMC during treatment from April to May 1985.
In October 1986 NPRC responded to a VA request for records of
psychiatric treatment of the appellant at Fort Ord in 1967.
The NPRC response listed a history of its multiple responses
to VA requests from September 1968 to the present for the
appellant's service medical records, including any from Fort
Ord. In December 1986, the Silas B. Hays Army Community
Hospital at Fort Ord responded negatively to a VA request for
medical records of the appellant from 1966 to 1969.
In February 1987 the U.S. Armed Services Center for Research
of Unit Records (CRUR) (formerly designated the U.S. Army and
Joint Services Environmental Support Group (ESG)) responded
to the appellant's request for information pertinent to his
PTSD claim. CRUR provided an extract from a 4th Infantry
Division Operational Report - Lessons Learned (OR-LL) for the
period ending January 31, 1968, describing division
operations during the Tet offensive, and an extract
describing Military Police operations in the Pleiku area
during "Tet." The extract showed that Camp Holloway
received a mortar attack on January 30, 1968. CRUR stated it
was unable to locate any information concerning the Sergeant
D----- referenced in the appellant's request for information.
The 4th Infantry Division OR-LL reported that enemy activity
was light at Pleiku, except during Tet at the end of the
reporting period. Pleiku City was attacked on two occasions
with 122mm rockets and there was a sharp increase in mining
and anti-aircraft incidents. The enemy attacked Pleiku
January 30, 1968, with a multi-battalion assault. The
division had 328 contacts with enemy forces, of which 32
involved enemy forces of platoon or larger size. In December
1967 there were increased harassing activities against
villages in Pleiku Province. There was a series of enemy
ambushes along Highway 19E. Early in January, captured
documents foretold of a large-scale enemy offensive in and
around Pleiku City during the Tet. Specifically stated
targets for ground attack with rocket support were the
airfields, police posts, the radio stations, the electric
power plant, and the bank. Some enemy troops were to
infiltrate the city to facilitate rapid seizure of the city
by attacking troops. On January 20, 1968, there was the
third enemy rocket attack on military installations near
Pleiku City. The Tet offensive began early on January 30,
1968, with mortar attacks on New Pleiku Air Force Base, 3d
Army of the Republic of Vietnam (ARVN) Cavalry Headquarters,
and Camp Holloway, and a rocket attack on the 71st Evacuation
Hospital. Following the indirect fire attacks, enemy ground
elements, many of which had previously infiltrated the city,
launched attacks on selected targets throughout the city.
The enemy was forced to withdraw on the evening of January
30, after achieving limited success during the day. The next
night an enemy assault was driven back with the aid of
artillery and gunships. On January 30, 1968, sweeping
operations were initiated in Pleiku City by air assault,
tank, and other ground elements, including combat engineers,
and completed the afternoon of February 1, 1968. Tanks from
the 1st Battalion 69th Armor and two companies from the 4th
Engineer Battalion were sent into the city January 30th.
Street fighting continued throughout the day and the southern
portion of the city was extensively damaged by fire. U.S.
and ARVN losses were eight KIA and 47 WIA. Administratively,
resupply was accomplished by land convoys from base camp, and
included a hot noon meal on February 1, 1968. The report of
military police operation in Pleiku City stated that street
fighting with numerous incidents of sniping was reported
during the week following January 30, and enemy contact
ceased completely on February 7, 1968, when normal military
police operations were resumed.
On January 30, 1968, at 3:05 am, Camp Holloway was attacked
by an estimated reinforced company using small arms,
automatic weapons, and mortars. The enemy was unable to
penetrate the perimeter, but 13 helicopters were damaged.
The report made no mention of American casualties at Camp
Holloway. The location of headquarters for the 4th Infantry
Division is not identified as Camp Holloway or otherwise
mentioned in the report.
In December 1987, the veteran submitted VA outpatient records
of May 1985 showing a referral for admission screening for a
Vietnam veterans extended treatment program. The screening
report stated the referral was inappropriate because active
psychosis was an absolute contraindication to treatment in
that unit. The appellant was said to show severe
circumstantiality, very loose associations, and grandiose and
persecutory ideation. The appellant was re-evaluated in
January 1987 and felt still an inappropriate candidate for
the program because there had been no change in his mental
status.
On VA examination in October 1987, the appellant was
described as a combat veteran with rage outbursts without
provocation. Historically, the appellant reported two tours
of duty in Vietnam of one year each. His family reported he
had no family problems before serving in the 4th Infantry
Division, but on return he had frequent nightmares,
flashbacks, violent rage outbursts, and panic reactions. The
appellant reported that after basic training he went to cook
school at Fort Ord. He reported having psychiatric treatment
for three weeks after arguing with a superior, and that he
did better after four months of psychotherapy. He said his
tours in Vietnam were from June 1967 to September 1969 in the
central highlands, first for 358 days, then two weeks at
home, and then 345 days. He said he was involved in the Tet
offensive in December 1967 in Pleiku. He said he was
assigned as a cook, but he was needed in a transport unit and
was promoted from Specialist 4 to Specialist 5 and kept in
the field where he transported civilians to fill sandbags.
After six months in a transport division he transferred to
reconnaissance duty, conducting reconnaissance patrols for 5
1/2 months, locating and calling in Viet Cong positions and
alerting battalion so they could attack. He stated Pleiku
was taken over by the enemy, and the infantry division could
not go in because their weapons were too heavy. Green Berets
and Mike Forces went in and called in army gun ships, which
burned down "hootches" and laundromats (homes for
prostitutes). A portion of Pleiku was destroyed.
The appellant said that after Pleiku, he was hospitalized for
three months with infectious hepatitis, after which he
returned to Vietnam. He went to Cam Ranh Bay, then to Nha
Trang for two weeks, then to Bame Tau, 1st Field Force. They
worked with "175 hausers," big guns, loading guns and
supporting field units for nine days. Then they returned to
Nha Trang for the rest of the tour, which he spent in the
kitchen as mess sergeant for nine months, until 1969. After
returning to the United States, he served in Germany for
three years until August 1972; he was barred from reentering
the service. He stated he was suffering from severe anxiety
and was having bad dreams, nightmares and flashbacks. The
appellant described the content of several bad dreams. He
stated he nearly killed a man in Alabama in 1974, but the
chief of police knew his family and had him sent to Tuskegee
VAMC for 18 months rather than jail. He reported being
arrested in Chicago for 1st degree murder after a man was
killed in a poolroom with a knife, but he was not brought to
trial for lack of evidence against him. He reported other
violent altercations and multiple arrests. He and his family
reported he had no problems growing up, and after service he
attempted to study computers in college, but he could not
concentrate. He reported having progressively worse anxiety,
nightmares, flashbacks, rage outbursts, poor relationships
with people, and heavy drinking. He said he could not hold a
job. He said his drinking became progressive in service and
continued until the present. The examiner's diagnoses were
chronic PTSD, severe, secondary to tour of duty in the Army
4th Infantry Division; chronic alcohol dependence, secondary
to tour of duty in the Army 4th Infantry Division; and mixed
personality disorder secondary to tour of duty in the Army.
The examiner stated her credentials as "M.D. (Certified
Psychiatrist)."
The appellant testified at a hearing before the Board in
February 1988. A transcript is not of record.
In April 1988 the Board affirmed on the merits the denial of
service connection for PTSD. The decision summarized the
appellant's February 1988 hearing testimony as the
contentions in his claim. The appellant contended a
psychiatric disorder began in or resulted from his service in
Vietnam as a truck driver involved in the Tet offensive. He
said a good friend was killed in Vietnam, that he
participated in loading dead and wounded soldiers, and that
his previously diagnosed schizophrenia was actually PTSD.
The Board stated that service connection for PTSD could be
granted if the diagnosis is adequately established and an
incident or incidents in service can be identified as
precipitating a stressor or stressors. The Board conceded
that stress provoking incidents may have occurred during the
Tet offensive, but it rejected the October 1987 diagnosis as
unsupported by history or clinical findings and inconsistent
with the existing voluminous medical record. The Board found
that PTSD was not demonstrated and concluded that PTSD was
not incurred in or aggravated by wartime service.
In June 1988, the appellant requested to reopen his claim for
service connection for PTSD. In April 1989 he submitted a
statement that he was in combat and currently had stress and
flashbacks.
On VA hospitalization from March to April 1989, the appellant
was admitted feeling agitated and upset, having just lost his
job at a Greek restaurant. Voices were telling him to kill
all Greeks and anyone else left on the road. He admitted to
having used alcohol, crack, and heroin recently. He was
noted to have a long history of abusive and violent behavior,
hearing voices that tell him to kill. He was noted to be a
Vietnam combat veteran, and he was preoccupied with issues of
entitlement, feeling his case should be service connected.
His symptoms improved during admission, and he was allowed
passes to look for new employment. Upon his refusal to have
a urine test after returning from a pass, he was restricted
for the remainder of the admission. The diagnoses were mixed
substance abuse (alcohol, cocaine, and heroin); episodes of
anger and depression; and antisocial personality disorder
with paranoid and antisocial trends.
The appellant testified at a VA hearing in December 1989.
The issue was whether reconsideration of the claim for
service connection for PTSD was warranted and whether there
was a new factual basis to allow the claim. The appellant
asserted that alcohol and substance abuse were part of PTSD.
The appellant testified he saw a lot of killing and dying
during the Tet offensive. He reported that coming back from
Camp Holloway he was attacked at "Lakoo" [sic] province in
April 1968, which was the worst. He said many Vietnamese and
soldiers were being killed, and there was much confusion,
with the Green Berets and the "Mag Force Task," small arms,
"we were using M16s, 45s, M60s." He reported being
attacked in convoy on highway 101. He said he knew a friend
of his, Sergeant D-----, was shot up very badly, taking about
5 AKs; his body was deformed, and at that time he thought he
was dead because of the way he looked. He stated he had seen
soldiers with their heads shot off and still moving. He
reported that this happened about the time many members of
the 101st and 173rd were assassinated at Hamburger Hill. He
said "we" started at the bottom and worked "our" way to
the top, with about 500 of the 101st and 500 of the 173rd
killed, and the same number brought to the hospital. He
stated he was a member of "that" unit. He reported
difficulty adjusting since service. He described his
travels, interpersonal and violent altercations, and legal
problems. The appellant submitted copies of his DA 20s (army
personnel records), a January 1986 VA hospital summary from
East Orange VAMC, and a December 1989 addendum to the October
1987 VA examination report.
The DA 20s comprised two sets for the first period of
service, one marked "rebuilt," and one set for the second
period of service. Both sets for the first period show that
from July 1, 1967, the appellant was assigned to Headquarters
and A Company, 704th Maintenance Battalion, 4th Infantry
Division. One set of records shows his MOS as 94A10, Cook's
Helper, the other shows his MOS as 94B20, Cook, from December
12, 1966. The DA 20s for the second period of service show
he was in Vietnam from September 22, 1968, to September 21,
1969, assigned as First Cook at the 129th Maintenance Support
Company. The records from both periods of service show the
appellant was authorized but was not issued the National
Defense Service Medal, the Vietnam Service Medal, the Vietnam
Campaign Medal, and 2 Overseas Bars.
The January 1986 East Orange VAMC discharge summary showed
diagnoses of chronic paranoid schizophrenia with acute
exacerbation; PTSD. The appellant was admitted because he
could not get Vietnam off his mind. He reported seeing a
killing in the subway in New York a month prior to admission,
and having stressful memories of Vietnam ever since. He
stated he began drinking to get rid of the memories, and his
mother told him he may have "stress disorder." He said he
was in the East Orange VAMC in 1982 for the same thing, that
he was first hospitalized at Tuskegee VAMC in 1970, having
been committed for nine months after killing a cellmate.
When an examiner commented that he knew a great deal about
stress disorder and its treatment, he replied that he had
researched the issue and felt he needed inpatient treatment
in a setting like the Lyons VAMC. Psychological testing
administered to differentiate paranoid schizophrenia from
PTSD suggested paranoid schizophrenia was the appropriate
diagnosis. The discharge diagnoses were schizophrenia,
paranoid, chronic, with acute exacerbation; PTSD.
The December 1989 addendum to the October 1987 VA examination
report reiterated the history of the appellant's two tours of
duty essentially as related in the original report, except
that the veteran reported being assigned to the 1st Field
Force loading "175 hausers" during his second tour for 90
days, rather than the 9 days previously reported. The
addendum also reiterated the appellant's October 1987 report
of post-Vietnam service, contents of nightmares, and
interpersonal and disciplinary problems. The report
summarized the appellant's treatment history, noting that he
had been drug and alcohol free since detoxification in August
1989. The physician reported the appellant continued to have
nightmares and to relive his Vietnam experience with
flashbacks provoked by hearing foreign languages on the train
and believing he was back in Vietnam. He said he had been
told that he had talked aloud about Vietnam while on the
train, was taken off the train by transit police, and was
given a summons to appear in court. He reported he had twice
been taken to Creedmore State Hospital and after treatment
been referred to Queens VAOPC. The physician noted that the
appellant had isolated himself from his family for three
years upon returning home from Vietnam. She stated that he
experienced numbing, nightmares, and rage outbursts; that he
drank heavily and used marijuana and cocaine to decrease
nightmares and rage outbursts; and that he hallucinated and
engaged in violent and aggressive behaviors. She said that
he now was drug and alcohol free and highly motivated for
help. The diagnoses were chronic PTSD, severe; chronic
alcohol and drug dependence in remission.
In March 1991 the Board affirmed the denial of service
connection for PTSD. The Board noted that the 1988 Board
decision had rejected the October 1987 diagnosis of PTSD as
not supported by historical or clinical evidence. The March
1991 decision found that the December 1989 addendum report
and diagnosis, as in the October 1987 examination report,
again relied on an unreliable history provided by the
appellant. The Board found that the appellant's accounts of
exposure to stressful situations during service in Vietnam
lacked credibility and concluded that the evidence submitted
since April 1988 did not provide a new factual basis
warranting service connection for PTSD.
On VA hospitalization from October to November 1991 the
appellant sought detoxification from alcohol and drugs. The
diagnoses were alcohol dependence, chronic schizophrenia with
acute exacerbation; and antisocial personality disorder.
Judgment and insight were fair, and he denied homicidal and
suicidal ideation.
The appellant sought admission to Brooklyn VAMC in March 1992
because of depression and suicidal ideation secondary to
substance abuse. He became very demanding and belligerent
with the staff, demanding they take care of his PTSD. The
diagnoses were marijuana abuse and alcohol intoxication; and
personality disorder, not otherwise specified.
In July 1992 the appellant appeared at the Brooklyn VAMC
emergency room exhibiting bizarre behavior and talking about
killing "VC." The problems reportedly began three weeks
before when his brother-in-law demanded that he leave the
brother-in-law's apartment after they fought. He had been
drinking alcohol and using cocaine frequently. He had been
non-compliant with his outpatient treatment for months. On
mental status examination he was oriented, without
hallucinations or other sign of thought disorder, without
suicidal ideation and without homicidal ideation about the
Viet Cong or anyone else. He was completely cognitively
intact. The impression was polysubstance abuse (alcohol and
cocaine) and malingering (regarding initial complaint of
homicidality); personality disorder, not otherwise specified,
with antisocial, borderline, and narcissistic features. The
appellant refused any treatment plan except admission.
In three sessions in November 1992, the appellant obtained a
private psychiatric evaluation from E. Mujica, M.D. The
appellant had a history of psychiatric disturbance dating
from his participation in the armed services. Since his
discharge in 1972, he reported numerous hospitalizations for
treatment of acute symptoms including marked anxiety,
aggressive behavior, insomnia, and auditory command
hallucinations, usually accompanied by alcohol abuse, with
acute episodes about monthly. The appellant was said to
appear to suffer from a personality disorder exacerbated by
PTSD and alcohol abuse. The appellant reported frequent
flashbacks of past combat experience, both when sober and
when drunk. The appellant reported having advanced infantry
[sic] training at Fort Ord during which he received
psychotherapy three times a week for six weeks after he
argued with a superior. He said that during his first
Vietnam tour he drove a truck, worked in the mess hall, and
performed "recon missions" for four months. Those missions
involved entering combat areas heavily surrounded by enemy
forces to report their positions for artillery attacks. He
stated he was very afraid he was going to die. He said the
missions were for three to five days, with groups of six men,
and they were not to attack the enemy, only observe them.
Upon completing his reconnaissance assignment, he returned to
"truck work." He returned to the United States in 1968
upon completion of his service, became very sick with
hepatitis contracted in Vietnam, and after three months of VA
hospitalization he reenlisted.
The appellant said that shortly after his return to Vietnam
he was assigned to a heavy-artillery base, which was highly
stressful, physically and emotionally. After that, he was a
mess sergeant in Nha Trang for the remainder of his tour.
During subsequent duty as a mess sergeant in Germany, he said
he developed increasingly severe anxiety symptoms, with
frequent nightmares with anxiety-provoking themes of military
experiences. Dr. Mujica commented there was some indication
the appellant responded with increased alcohol abuse during
that period and had increased difficulty getting along with
others, especially commanding officers. After service, he
was unable to make an adequate emotional adjustment, and was
able to work for only brief periods. The appellant reported
multiple and continuing periods of hospitalization in
Chicago, Detroit, Alabama, and New York. Typically, he would
report to a hospital emergency room, often intoxicated with
alcohol; presenting symptoms including auditory
hallucinations, paranoid ideation, heightened arousal, and
increased aggressiveness. The episodes would sometimes be
triggered by environmental stressors in conjunction with
traumatic memories and anxiety reactions associated with his
Vietnam experience.
The doctor felt the appellant's aggressive behavior and
tendency toward splitting as a major defense appeared to have
been exacerbated by his military training and combat
experience, with certain tendencies towards hostility and
difficulty coping with stress shown by his psychiatric
treatment while stationed in California in 1966. He felt
that the reconnaissance experience in Vietnam during the
appellant's first tour set the stage for the development of
acute anxiety reaction with feelings of hopelessness, which
later grew to become the core of current episodes of
generalized anxiety and decompensation. During his
reconnaissance missions he was stationed in combat areas
densely populated by the enemy where he felt like a target,
unable to defend himself, having to brave enemy fire, while
knowing well that he was outnumbered and likely to die should
he attempt to counterattack. This combination of heightened
anxiety, fear of attack by others, and defenselessness
continued to be important characteristics of his current
symptomatic episodes.
Dr. Mujica's diagnostic impression of the appellant was of
characterological deficits in personality functioning
associated with immature, impulsive and borderline
personalities. Prominent symptoms characteristic of PTSD
were also present, including recurrent depressive and anxiety
reactions in association with recollections of wartime
experience, recurrent distressing dreams of these
experiences, and intense distress when exposed to situations
which are reminiscent of the traumatic experiences he had,
especially loud sounds reminiscent of gunfire. The doctor
articulated multiple other symptoms of the appellant
consistent with PTSD, and said his alcohol abuse was also a
common complication of PTSD that also undermined his social
functioning. The doctor stated that the appellant's
statements and review of records of prior hospitalizations
showed that auditory hallucinations were not prominent or
persistent and therefore did not meet the criteria for
diagnosis if schizophrenia. He opined that the symptoms
could be understood as secondary symptoms, brought about by
weakening of reality testing and other ego functions due to
the recurrent disruptive anxiety, which constituted a central
component of his PTSD.
A January 1994 statement from the appellant's treating
psychiatrist at Brooklyn VAOPC stated that the appellant was
under daily care and treatment in the Mental Illness Chemical
Abuse Program where he was cooperative with his treatment
plan. He was said to be suffering from PTSD with a history
of cocaine dependence and alcohol abuse. The appellant was
said to have been cocaine free since 1989, and alcohol free
for about four months and prior to that for seven months.
The statement said the appellant was diagnosed with PTSD in
1982 at Montrose VAMC.
In September 1995, USASCRUR responded to the appellant's
request for information concerning his PTSD claim. OR-LLs
from the 4th Infantry Division and the I Field Force, Vietnam
(IFFV) for the period April 30 to October 31, 1968, showed
that Pleiku Air Base received several mortar/rocket attacks
on May 5, 1968, and that during September 1968 the Nha Trang
air base was involved in three standoff attacks resulting in
11 airmen wounded and damage to several aircraft. U.S. Army
records showed Nha Trang as the base camp location for the
IFFV. Attacks against Fire Support Base (FSB) Banita could
not be documented. USASCRUR advised the appellant that to do
further research concerning specific combat incidents he must
provide the most specific date possible, the type and
location of the incident, numbers and full names of
casualties, unit designations to the company level, and
identification of other units involved.
The appellant annotated the margins of several pages of OR-
LLs, marking "vet," "vet here," "during recon," or
"here" next to various incidents reported. Specifically,
he indicated his presence on March 26, 1968, during an attack
on the 3rd Battalion, 8th Infantry FSB, just east of the Plei
Trap road, in which the enemy temporarily breached the
perimeter, but could not overrun the position, and was
repulsed with heavy losses. The appellant indicated he was
present in Pleiku province on March 4, 1968, when an element
of a 122-mm rocket unit attacked Camp Enari from the east,
and on March 16, 1968, when a company-sized element attacked
Camp Enari from the southwest. He noted that during recon he
was at Kontum City when the assault against the city began
with mortar and rocket attacks January 30, 1968, and
continued through the next day with numerous attacks repelled
and 10 percent of the city destroyed from January 30 to
February 4, 1968. Also, the OR-LLs reported a January 30,
1968, rocket attack on the ARVN compound at Camp Holloway,
and a breach of the camp perimeter on February 1, 1968, which
set a truck afire and wounded five U.S. personnel. The
appellant did not indicate his presence at any combat actions
reported in the 4th Infantry Division OR-LL ending July 31,
1968, or in the IFFV OR-LL ending October 31, 1968.
In a November 1995 statement in support of his claim the
appellant reported his several psychiatric symptoms. He
stated that without medication he hears voices of people he
knew in the military.
In a March 1996 statement, the Chief, Medical Administration
Service, NYVAMC, reported that the appellant's attending VA
physician reported that the appellant attends the NYVAMC PTSD
clinic for a diagnosis of PTSD. He was reported to
experience severe symptoms of PTSD including daily intrusive
thoughts of his Vietnam combat experiences, intense
flashbacks, frequent rage attacks, exaggerated startle
response, and severe insomnia with frequent nightmares of
Vietnam. He was noted to attend a weekly group therapy for
Vietnam combat veterans with PTSD. In a July 1996 report,
his treating VA physician stated the appellant was a combat
veteran who served in the 4th Infantry Division from 1967 to
1968 and sustained significant combat exposure (firefights,
etc.), especially during the Tet offensive when Pleiku was
overrun and he lost many friends and was exposed to many
casualties and bodies.
A November 1996 statement from the NYVAMC chief of the
Medical Administration Service reported a statement obtained
from the attending nurse in the veteran's treatment program
essentially the information reported by the treating
physician in March 1996, also relating symptoms and behaviors
to the appellant's "intense combat exposure" in Vietnam.
VA outpatient treatment notes from December 1995 to November
1996 show the appellant's diagnosis as PTSD and polysubstance
abuse in remission and participation in individual and group
therapy. In April 1996 it was noted he was recently out of
jail for an assault with a knife and resisting arrest after
drinking for the first time in months, by the appellant's
report. In July 1996 he came to the clinic intoxicated and
was asked to leave.
On VA examination in November 1996 the appellant reported
serving two tours in Vietnam, June 1967 to June 1968 as an
infantryman (11B) and September 1968 to September 1969 as a
cook (94B) assigned to a Long Range Reconnaissance Patrol
Unit (LRRP). He described as stressors being at Pleiku when
it was overrun, and seeing dead, burned, dismembered
children; the loss of friends, especially a first sergeant
killed in front of him; fire fights on Dragon Mountain; lots
of shelling and bombing; having to set up Claymore mines; and
pulling perimeter guard. He stated he was in a convoy hit by
sniper fire. He said he could still smell burned bodies.
The examiner noted his reported symptoms. The diagnoses were
paranoid schizophrenia and chronic, severe PTSD, which the
examiner said appeared to be a result of his military service
in Vietnam.
On VA examination in February 1997 the examiner reviewed and
commented on the appellant's past psychiatric treatment and
diagnoses. The examiner noted a prior Board finding that
there was no evidence of the appellant having been in the
places in Vietnam he reported at the times he reported. The
appellant reported that he was in AIT (advanced individual
training) at Fort Ord for four months and started jump
school, which he did not finish. He said he was sent to
Vietnam in June 1967 as part of an infantry reconnaissance
unit. He described feeling terrified when he first arrived
in the Pleiku area from the replacement center in June 1967.
He said he was required to set Claymore mines around the camp
perimeter and there was significant shelling and bombing
right away in June 1967 where he was stationed at Camp Enari,
the headquarters of the 4th Infantry Division, to which he
was assigned. The appellant described frequent attacks by
the Viet Cong and seeing heads blown off by .50 caliber
machine guns. He said after this was over he was sent to
Kontum around December 1967, and he was still under
firefights. He stated that in March 1968 he had to go to
Pleiku City because the Viet Cong had infiltrated the city,
and that his orders were to get the Viet Cong without harming
the South Vietnamese citizens. He said this lasted from
eight to 10 hours and he and his comrades were under constant
fire attacks. He said many men were loading dead and wounded
into the same trucks. He said he saw people with no
shoulders and people being set on fire. He said he came home
in May 1968 and was then put in a VA hospital for hepatitis.
The appellant said that he re-enlisted for a second four year
tour and was returned to Vietnam even though he been told he
would not be because of his hepatitis. He said he was
assigned as a cook at 1st Division headquarters at Nha Trang,
but he did not remain a cook because of his experience in
"the boonies." He reported he was assigned to the 1st Field
Force dealing with big guns, 175s and 8 inches. At that time
he started using drugs much more and getting article 15s. He
said that later, in Germany, he got involved in selling
drugs, prostitution, and the black market, got a special
court martial and was put out of the Army. He said he was
told if he kept a clean civilian record for two years he
could come back in as a sergeant, but he committed a murder
in Chicago six months later, for which he served a nine-month
sentence. Since then he had never had a job or a successful
relationship; he had five years probation for robbery; and he
was about to go to court for assault with a knife. The
examiner noted the appellant's current participation in VA
outpatient PTSD treatment.
On mental status examination, the appellant was cooperative,
but initially angry and needed to be calmed down. His
thought processes were goal directed, but with evidence of
circumstantiality, perseveration, and tangentiality. He
appeared to have some delusions and paranoid ideation. He
believed people are frequently talking behind his back, which
he said he knew because he could just feel it. He
acknowledged visual hallucinations, seeing things that on
second look were not there, and seeing people in his
apartment who on second look were not there. He denied
auditory hallucinations, which he said stopped nine years
ago. The examiner noted the appellant's reports about drug
use after service and its effect on the appellant.
The examiner said that regarding PTSD symptoms, the appellant
reported walking around all night getting angry and breaking
his family's property. He said he often thinks about his
military experiences and has flashbacks and nightmares three
or four times a week. Regarding the appellant's thought
process, the examiner said it took almost an hour and a half
to obtain his military history and it was difficult to
understand the chronological order of his experience. On
administration of a Mississippi Scale for Vietnam PTSD, he
obtained a score of 129, with 90 percent of Vietnam PTSD
cases scoring over 107.
In his diagnostic impression, the examiner noted the
appellant's multiple diagnoses over the past 20 years. Upon
review of the claims folder, the examiner felt the most
consistent diagnosis was polysubstance abuse. He also noted
the prescription of neuroleptic medications for much of that
time, which are typically given for psychotic disorders such
as schizophrenia. The examiner stated that
[t]ypical of individuals with psychotic
disorders, the veteran currently
evidences paranoid, delusional[,]
circumstantial, perseverative and
tangential thinking. He also describes
symptoms that meet the criteria for PTSD.
Despite the absence of facts supporting
that the veteran was in Vietnam at the
stated time, it is possible that a
veteran who is suffering from a psychotic
disorder and was a soldier during the
Vietnam era could have a variety of
anticipatory experiences intense enough
that they could produce a PTSD reaction.
The diagnoses were polysubstance abuse, in remission; PTSD;
schizophrenia, chronic, paranoid type.
In April 1997 VA obtained morning reports for Headquarters
and Company A, 4th Infantry Division, for the period January
1, 1968, to April 30, 1968. The appellant was listed twice.
On February 5, 1968, he departed on temporary duty to Kuala
Lumpur for R&R (rest and recreation). On February 13, 1968,
he returned from Kuala Lumpur.
The appellant testified at a hearing before the Board in
April 1998. He stated he arrived in Vietnam in 1967 and went
on patrols in Long Binh on the line of replacement. He said
the first time he was scared was when he was chosen to set up
Claymore mines around the perimeter; he had to crawl out of
his foxhole, set the fuses, and crawl back. He stated his
first tour of duty in Vietnam he was on patrol, attached to
the 1st and 22nd in the 4th Infantry Division, "when I got
there, when they sent me up to Pleiku." He said he was
really at Camp Enari, which they called Dragon Mountain, with
the mountaineers. He said when the enemy tried to overrun
the camp, they blew their heads off with .50 caliber machine
guns and then took pictures of the dead bodies with arms and
heads lying around, which were dropped over villages to show
what happened. He said he was stationed there for about six
months and then he was moved all around Vietnam during the
Tet offensive in 1968. He said he was always seeing dead
bodies and getting more and more scared, and he began using
drugs, which he never had before going to Vietnam. He
related that they lost over 100 soldiers the day Pleiku was
overrun, with the dead and wounded being taken out on the
same trucks. He described civilian casualties and U.S.
gunship activity in burning an area where all the drugs and
prostitutes were. He said he could smell dead and charred
bodies for weeks, every time he went from Camp Enari into
Pleiku. He said he saw firefights when riding down the
street.
Regarding his second tour in Vietnam, he stated he provided
artillery support to the big guns. He said he worked as a
cook in Vietnam during his last nine months there. When
asked if he had any letters that he had written home, he
responded that he had had a close friend whose name he
thought was J--- D-----, who he met in Germany.
The appellant described his difficulty keeping employment and
his inability to get along with anyone since separation from
the service. He reported several acts of violence and
multiple psychiatric hospitalizations.
In further testimony about his time in Vietnam, he said his
most traumatic experience was in Pleiku province in February
1968 during the Tet offensive when we lost over a hundred men
in Pleiku, and seeing dead bodies. He said at that time,
February to March 1968, he was stationed with the 4th
Infantry Division, attached to the 1st Battalion and 22nd. He
said that at that time he was on patrol for three days at a
time, and there was an incident about the end of February in
which they got caught between Camp Holloway and Dragon
Mountain. When asked what happened in the incident, he said
"Charlie" overran Pleiku, and "we" had to get all the
civilians in the church yard and then they tried to get
Charlie out. They moved Charlie up about 50 or 75
"clicks," and then lost so many men they decided to just
"take it out," with gunships, which burned everybody up,
and he could see smoke and smell the fumes from dead bodies
for weeks every time he went through there. He said the only
friend he had over there that got shot up was Sergeant D-----
, who got hit "on 49 out to the 1st and 69th Convoy." He
said he later ran into D----- at an NCO club in France while
the appellant was stationed in Germany after completing his
second tour in Vietnam.
In a May 1999 letter, appellant's counsel argued that
everything necessary to find both new and material evidence
was already of record, and the evidence points to a grant of
service connection. He submitted copies of material in the
claims folder when he wrote the letter. Quoting the Board,
"clinical manifestation associated with his current
psychiatric impairment are not consistent with PTSD [sic],"
(citation omitted), he averred that the Board's March 1991
denial was based on the rejection of the diagnosis of PTSD.
Referencing VA outpatient and examination reports of January
1994, March 1996, and February 1997, he avers there is
independent verification of stressors reported by the
appellant. He noted a patent error in the February 1997 VA
examination report in the examiner's statement, "despite the
absence of facts supporting that the Veteran was in
Vietnam," and that certain Morning Reports indicated he was
there.
A December 2001 statement from the VA health administrator
who submitted statements in March and November 1997 reported
that the veteran's medical record reflects the veteran's
enrollment in the VAMC's PTSD clinic for six years to treat
diagnosed PTSD. The statement, as in March and November
1997, reported that the veteran's PTSD "derives from his war
experiences in Vietnam."
In a statement of December 2001, the appellant, through
counsel, asserted that the Board should remand his case to
the RO pursuant to the VCAA to notify the appellant of the
evidence necessary to substantiate his claim.
The claims file now before the Board contains evidence
apparently received by the RO prior to the Board's July 1999
decision but that was not then in the record before the
Board. The Board's July 1999 decision did not mention it.
It is not on the September 1999 certified list of evidence
and materials the Board reviewed in July 1999. The
appellant's attorney did not mention it in briefs of April or
September 2000. This evidence was clearly received by VA
before the Board's July 1999 decision, but the Board did not
have notice of the existence of the evidence. Whatever the
circumstances that led to the omission of this evidence from
the record before the Board, the Board's current review
encompasses the entire record, and the appellant has not been
prejudiced by its previous omission.
The evidence in question is an October 1998 lay statement by
M.W., in pertinent part, as follows:
I had the pleasure to meet [the
appellant] in 1969. We both were a
member of the 1st log[istical] command in
Viet Nam. When I first got to the Unit
[the appellant was attached to the 1st
Field Force in "Banmatu" [sic] Viet
Nam, a firebase for big guns.
I served 8 months with [the appellant]
and he talked a lot about how glad he was
to be back at Head Quarter[s]. [He] had
served a year with the 4th Division in
Pleiku. He talked about the 4th when
Pleiku City was attacked and a lot of
soldiers whom he had seen died, and how
they were attacked night and day.
. . . . [The appellant] was a good
soldier and he is still a good friend.
For the 15 years we have known each other
here in New York, [the appellant] has
never been able to keep a job.
II. Analysis
A. Procedure
The Veterans Claims Assistance Act of 2000 (VCAA) was enacted
November 9, 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126 (West Supp. 2001). It prescribed VA's
duties of notice and assistance to claimants for VA benefits.
VA has promulgated regulations implementing the VCAA. See 66
Fed. Reg. 45,620-32 (Aug. 29, 2001) (to be codified as
amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)).
Neither the VCAA nor the implementing regulations had been
enacted when the case was last before the RO, and the
appellant's counsel seeks remand of the case to the RO for
the RO to inform the appellant of the necessary information
and evidence for him to submit to substantiate his claim.
Such a remand is not necessary. During the pendency of this
and previous claims, the veteran has had ample notice of all
information and evidence needed to substantiate his claim.
VA's letter of October 12, 1984, informed the veteran of the
evidence necessary to substantiate a claim for service
connection for PTSD. The January 30, 1997, letter from the
RO again informed the veteran in detail of the information
necessary to substantiate his claim and of the actions VA
could and, upon his production of the necessary information,
would take to obtain evidence on his behalf. The March 1994
rating decision, of which the appellant received a copy, the
April 1995 statement of the case, of which he received a
copy, and discussion at the April 1998 Board hearing have all
informed the veteran that to reopen and ultimately prevail in
his claim, he must submit new and material evidence of the
occurrence in Vietnam of his alleged PTSD stressors.
Additionally, the September 1995 letter to the appellant from
the ESG responded to his request for information to
corroborate certain of his allegations. It reveals that the
veteran did and does in fact have a sophisticated
understanding of the evidence necessary to substantiate his
claim. Thus, VA has in fact discharged the duty now imposed
by the VCAA to inform the veteran of the information and
evidence necessary to substantiate his claim. 38 U.S.C.A.
§ 5103 (West Supp. 2001); 66 Fed. Reg. 45,620, 45,630 (Aug.
29, 2001) (to be codified at 38 C.F.R. § 3.159(b)).
The appellant is not prejudiced by the Board's consideration
of fulfillment of the VCAA duties in the first instance, as
the appellant has had the opportunity to address the
requirements of the Act, and has done so through his counsel,
and as there is no indication at all that the appellant is
unaware of what is required to substantiate his claim or that
any relevant evidence that may be obtained remains to be
sought. The requirements of the VCAA and the implementing
regulations have been substantially met by the RO, and there
would be no possible benefit to remanding this case to the RO
for its consideration of the requirements of the VCAA in the
first instance. See Soyini v. Derwinski, 1 Vet. App. 540,
546 (1991) (strict adherence to requirements in the law does
not dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided). Under these circumstances,
adjudication of this appeal, without referral to the RO for
initial consideration under VCAA, poses no harm or prejudice
to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App.
384 (1993); VAOPGCPREC 16-92. Additionally, the Board's
consideration of the VCAA regulations in the first instance
is not prejudicial to the appellant because the provisions of
this rule merely implement the VCAA and do not provide any
rights other than those provided by the VCAA.
Whereas this decision reopens the appellant's claim, VA has a
duty to assist the appellant to obtain evidence to
substantiate his claim and to inform him of VA inability to
obtain evidence of which VA had notice. 38 U.S.C.A. § 5103A
(West Supp. 2001); 66 Fed. Reg. 45,620, 45,630-31 (Aug. 29,
2001) (to be codified at 38 C.F.R. § 3.159). VA has afforded
the appellant extensive assistance to obtain the evidence of
which VA has had notice, whether in private, state, or
federal custody. VA has afforded the veteran multiple and
adequate VA examinations. It has discharged its duty to
assist him to develop evidence in support of his claim.
38 U.S.C.A. § 5103A(b), (c), (d) (West Supp. 2001); 66 Fed.
Reg. 45,620, 45,630-31 (Aug. 29, 2001) (to be codified as
amended at 38 C.F.R. § 3.159(c)).
VA's duty to notify the appellant of its inability to obtain
evidence of which it has notice has also been fulfilled.
38 U.S.C.A. § 5103A(b)(2) (West Supp. 2001); 66 Fed. Reg.
45,620, 45,630-31 (Aug. 29, 2001) (to be codified at
38 C.F.R. § 3.159(e)). By letter of January 1981, VA
informed the appellant of its failure to obtain records from
Tinley Park State Hospital. VA informed the appellant at a
January 1983 hearing that VA did not have records of
purported treatment at Fort Ord, and a March 1983
supplemental statement of the case in a then-pending claim
revealed actions taken to obtain medical records from Fort
Ord and, in listing the evidence obtained that did not
include records from Fort Ord, revealed the lack of success
in obtaining those records. A January 1986 SSOC informed the
veteran of VA action to obtain treatment records from St.
Vincent's and revealed the failure to obtain those records.
VA informed the veteran by letter of January 1987 that the
medical facility at Fort Ord had responded negatively to VA's
request for records. In February 1987, the ESG informed the
veteran's then-representative directly of the results of its
search for records corroborative of his allegations. The
ESG's January 1995 letter to the appellant updated him on the
status of that agency's search for evidence to substantiate
his claim. It notified him directly of the specific
information necessary to corroborate certain of his reports.
Cf. Cohen v. Brown, 10 Vet. App. 128 (1997) (VA frustrated
its duty to assist by failure to inform appellant of
additional information requested by ESG to enable additional
search for documents corroborating appellant's assertions).
The Board does not interpret VCAA to require redundant
notification. The SSOC of August 1997 informed the appellant
of his ultimate responsibility to produce evidence, of time
limits to produce evidence, and of the potential consequences
of failure to produce evidence necessary to substantiate his
claim. Although the SSOC provided the veteran the text of
38 C.F.R. § 3.159 then current, the regulation as amended by
the VCAA is substantially the same regarding the ultimate
burden of production and consequences of late or non-
production of evidence. VA has discharged its duty to notify
the appellant of its inability to obtain certain records.
38 U.S.C.A. § 5103A(b)(2) (West Supp. 2001); 66 Fed. Reg.
45,620, 45,631-32 (Aug. 29, 2001) (to be codified at
38 C.F.R. § 3.159(e).)
B. Substance
1. New and Material Evidence
When the Board denied the appellant's claim in March 1991,
that decision was final. 38 U.S.C.A. § 7103(a) (West Supp.
2001); 38 C.F.R. §§ 3.160(d), 20.1100 (2001). When the Board
disallows a claim, the claim may not thereafter be reopened
and allowed and a claim based upon the same factual basis may
not be considered, 38 U.S.C.A. § 7104(b) (West 1991), unless
new and material evidence is presented or secured.
38 U.S.C.A. § 5108 (West 1991). No other standard than that
articulated in the regulation applies to the determination
whether evidence is new and material. See Hodge v. West, 155
F.3d 1356 (Fed. Cir. 1998).
Although the regulatory definition of new and material
evidence has been changed with the adoption of the VCAA
regulations (see 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001)
(to be codified as amended at 38 C.F.R. § 3.156(a)), that
particular amendment is effective only for claims to reopen
presented on or after August 29, 2001. Id. Thus the
definition of new and material evidence on which the Board
must rely is that in effect prior to August 29, 2001.
New and material evidence means evidence
not previously submitted to agency
decisionmakers which bears directly and
substantially upon the specific matter
under consideration, which is neither
cumulative nor redundant, and which by
itself or in connection with evidence
previously assembled is so significant
that it must be considered in order to
fairly decide the merits of the claim.
38 C.F.R. § 3.156(a) (2001).
The evidence to be reviewed for sufficiency to reopen a claim
is the evidence submitted since the most recent final denial
of the claim on any basis. Evans v. Brown, 9 Vet. App. 273
(1996). Thus, evidence submitted since March 1991 is of
concern for the purpose of reopening this claim.
For the purpose of determining whether evidence is new and
material, its credibility is presumed. Justus v. Principi, 3
Vet. App. 510, 513 (1992). Once a claim is reopened, the
weight and credibility of the new evidence is determined in
the context of all of the evidence, new and old. Id.
Section 3.156(a) does not explicitly state the qualities
evidence must have to be "so significant that it must be
considered in order to fairly decide the merits of the
claim." 38 C.F.R. § 3.156(a). At the least, it is
reasonable to require evidence submitted since March 1991 to
"contribute to a more complete picture of the circumstances
surrounding the origin of a veteran's injury or disability,
even where it will not eventually convince the Board to alter
its ratings decision." Hodge, 155 F.3d at 1363.
In the instant case, the March 1991 Board decision rejected
the appellant's history of participation in combat and found
his accounts of exposure to stressful situations during
service in Vietnam incredible. The Board rejected a VA
diagnosis of PTSD, in part, because the diagnosis was based
on history the Board found false. The appellant's May 1999
assertion that the Board denied the claim because the
diagnosis was inconsistent with the clinical findings, and
thus the appellant lacked new and material evidence for want
of a diagnosis of PTSD takes the quoted passage out of
context. In context, it is clear that the rejection of the
testimony and allegations of stressors and participation in
combat underlay the rejection of the diagnosis, and was the
finding ultimately fatal to the claim.
"[T]he specific matter under consideration," 38 C.F.R.
§ 3.156(a), is the actual occurrence of a stressor or
stressors in service, because that was the specific basis of
the prior disallowance. Evans, 9 Vet. App. at 283-84.
Evidence will "bear directly and substantially on the
specific matter under consideration," 38 C.F.R. § 3.156(a),
if it "contribute[s] to a more complete picture of the
circumstances surrounding the origin of [the] veteran's"
psychic trauma. Hodge, 155 F.3d at 1363.
Presuming its credibility, the October 1998 statement by M.
W. meets the criteria for new and material evidence as set
forth in the regulatory definition and as illustrated in
Hodge, 155 F.3d at 1363. The statement provides a current
recollection of the appellant's contemporaneous accounts of
his proximity to combat and to seeing dead and wounded. The
statement tends to corroborate the veteran's broad assertions
of exposure to psychically traumatic events. The statement
is new and material. 38 C.F.R. § 3.156(a) (2001).
Consequently, the claim must be reopened. 38 U.S.C.A. § 5108
(West 1991).
The RO limited its review to the question whether to reopen
the previously disallowed claim. The Board will proceed to
consider the credibility and weight of all of the evidence.
Review of the appellant's statements and testimony and
information provided him by VA reveal that he is well
informed of the laws and regulations governing entitlement to
service connection for PTSD, and that he has in fact argued
the merits of his claim in the context of the instant appeal.
The Board may therefore reach the merits of the matter
without prejudice to the appellant. Bernard v. Brown, 4 Vet.
App. 384, 389 (1993).
2. Entitlement to Service Connection for PTSD
In seeking VA disability compensation for PTSD, the appellant
seeks to establish that current disability results from
disease or injury incurred in or aggravated by service.
38 U.S.C.A. §§ 1110, 1131, 5107(b) (West Supp. 2001). Such a
disability is called "service connected." 38 U.S.C.A.
§ 101(16) (West 1991).
Service connection connotes many factors
but basically it means that the facts,
shown by evidence, establish that a
particular injury or disease resulting in
disability was incurred coincident with
service in the Armed Forces, or if
preexisting such service, was aggravated
therein. This may be accomplished by
affirmatively showing inception or
aggravation during service or through the
application of statutory presumptions.
38 C.F.R. § 3.303(a) (2001).
Service connection for post- traumatic
stress disorder requires medical evidence
diagnosing the condition in accordance
with Sec. 4.125(a) of this chapter; a
link, established by medical evidence,
between current symptoms and an in-
service stressor; and credible supporting
evidence that the claimed in-service
stressor occurred. If the evidence
establishes that the veteran engaged in
combat with the enemy and the claimed
stressor is related to that combat, in
the absence of clear and convincing
evidence to the contrary, and provided
that the claimed stressor is consistent
with the circumstances, conditions, or
hardships of the veteran's service, the
veteran's lay testimony alone may
establish the occurrence of the claimed
in-service stressor.
38 C.F.R. § 3.304(f) (2001).
The evidentiary provisions for establishing combat-related
service connection for PTSD are derived from the evidentiary
provisions afforded by statute for proving service connection
related to combat generally. See 38 U.S.C.A. § 1154(b) (West
1991). In a claim for PTSD, the "injury" incurred in
service resulting in disability is the psychic trauma, or
stressor, that precipitated the disorder. See 38 C.F.R.
§ 3.304(f) (2001).
The appellant has numerous diagnoses of PTSD. Each of them
fundamentally relies upon the truth of the veteran's
allegations of psychic trauma in combat in Vietnam for the
validity of the diagnosis. Most recently, in the statement
of December 2001, for example, a VAMC administrator
associated the veteran's diagnosed PTSD with "war
experiences in Vietnam." Where the alleged occurrence of a
stressor is untrue, or unproven, a diagnosis of PTSD based on
the alleged event is not probative of the incurrence of PTSD
in service, notwithstanding that the diagnostician finds
credible the history on which the diagnosis is predicated.
See Cohen v. Brown, 10 Vet. App. 128 (1997) (validity of
diagnostician's association of diagnosis of PTSD with events
in service dependent on truth of occurrence of the specific
events the diagnostician finds to be the precipitating
stressors). Prior disallowances of the appellant's claim for
service connection for PTSD have resulted from the lack of
corroboration of the events upon which the several diagnoses
are predicated.
The fact of the veteran's diagnosis of PTSD is not at issue.
If the evidence that the events that he asserts happened in
service to precipitate PTSD show it to be as likely as not
that they actually occurred, then he is entitled to the
benefit of any doubt about the material issue whether the
events occurred. 38 U.S.C.A. § 5107(b) (West Supp. 2001).
If competent medical opinion is divided for and against
attributing PTSD to one or more specific stressors in
service, and the weight of that evidence is in equipoise, the
appellant is entitled to the benefit of the doubt on the
material question whether PTSD is attributable to an event in
service. Id.; Cf. Cohen, 10 Vet. App. 128 (probative value
of medical attribution of diagnosis to cause is dependent on
whether occurrence of specific stressor is corroborated).
If the appellant engaged in combat with the enemy, and the
reported stressors occurred during or were related to such
combat, then his testimony alone is sufficient to establish
the fact of the occurrence of the stressors, unless the fact
of the occurrence of the stressors is rebutted by clear and
convincing evidence to the contrary. 38 U.S.C.A. § 1154(b)
(West 1991); 38 C.F.R. §§ 3.304(d), (f) (2001). The
determinations whether any particular set of circumstances
constitutes combat with the enemy, and whether the appellant
is a veteran of combat with the enemy, must themselves be
decided based on the credibility and probative value of the
evidence in his case. VAOPGCPREC 12-99.
No official record corroborates that the veteran was in
combat. Thus, the determination whether the veteran engaged
in combat with the enemy, and ultimately whether he suffered
the stressors he reports, rests on the credibility and
probative weight of his testimony and the October 1998
statement of M. W.
The appellant's multiple statements in written declarations,
hearing testimony, and history told to mental health
examiners asserting that he engaged in combat, came under
fire, handled dead bodies, or engaged in other vaguely
described activities other than his duties as a cook are
incredible. Incredibility is an essential characteristic of
contradictory testimony. The records shows a clear pattern
of evolution in later testimony that contradicts earlier
testimony.
In multiple contexts, prior to learning about PTSD and
claiming entitlement to service connection for PTSD, the
appellant stated he was a cook in Vietnam and denied
implicitly and explicitly that he was exposed to combat
conditions: after his first period of service, on VA
hospitalization in June and July 1968; during his second
period of service, to a treating physician in August 1969 at
the 8th Field Hospital in Vietnam; in an April 1976 VA
hearing, when first seeking service connection for a
psychiatric disorder, he said he was a cook when responding
to a direct question whether he had any duties in the service
that might have made him nervous; in an October 1981 VA
hearing he said he served two years in Vietnam as a cook; on
VA examination in December 1981 he said he had worked as a
cook in Vietnam and had never been exposed to combat
conditions.
The appellant's report of a combat history began its
evolution when he became aware of the unique significance of
such a history to a claim for service connection for PTSD.
The most plausible explanation for this evolving history is a
desire to seek gain. The record provides no credible reason
why the veteran would not have reported facts about his
service in response to direct questioning prior to acquiring
an awareness of self interest in reporting such facts. The
record does not show that he was reticent to discuss events
in Vietnam, revealing them only after extensive therapy. The
record reveals a marked and consistent propensity at all
times to report his military experience. Moreover, his
reports prior to his first PTSD claim of his activities in
Vietnam are consistent with his official service personnel
file, but his accounts of events in Vietnam made after
asserting a claim for PTSD are not. The entire evidence of
record must be reviewed critically in adjudicating a reopened
claim. It is when seen in toto that the veteran's testimony
is most incredible.
In light of the above, all of the appellant's testimony that
he engaged in combat and suffered psychic trauma in combat
and while under attack and while on reconnaissance missions
and rescue missions in the jungles, in Pleiku, and in other
locations is contradictory testimony and incredible. He made
all of these statements after he learned the necessary
elements of a claim for PTSD, and they have been
inconsistent, or at least so dynamically evolving regarding
the intensity of his combatancy as to appear blatant
contrivances. Thus none of the appellant's testimony,
including reports to physicians, is credible. Lacking
credibility, they cannot establish that he is a veteran of
combat with the enemy. Whereas he is not a veteran of
combat, his lay testimony cannot be the "satisfactory lay
evidence" with which a veteran of combat with the enemy can
establish the fact of a stressor. 38 U.S.C.A. § 1154(b)
(West 1991); Zarycki v. Brown, 6 Vet. App. 91 (1993).
The summary report of VA hospitalization in October and
November 1991 is not probative evidence that the appellant
sustained psychic trauma in Vietnam. The March 1992 records
from Brooklyn VAMC are likewise not probative of whether the
appellant sustained psychic trauma in Vietnam. Recording
that he sought treatment for PTSD is not evidence that a
stressor occurred in Vietnam. The July 1992 VAMC emergency
room note of the appellant's declaration of a desire to kill
Viet Cong does not tend to prove any particular event
occurred in Vietnam.
Dr. Mujica's November 1992 report noted several putative
stressors reported by the appellant. The appellant reported
seeing dead bodies, doing reconnaissance missions and
artillery duty, and other duties allegedly performed in
Vietnam, specifically truck work and mess hall work. In
October 1981 hearing testimony, the appellant reported that
his nervous conditions began after seeing dead bodies in 1967
or 1968. He reported reconnaissance patrols and artillery
duty in the VA examination of October 1987. The doctor,
although speaking of the appellant's flashbacks and other
symptoms as responses to combat experiences generally,
specifically attributed psychic trauma to the appellant's
experiences on reconnaissance duty. The Board finds this
aspect of the appellant's history particularly incredible.
The nexus between the diagnosis and the alleged event in
service is an after-the-fact opinion of medical nexus, which
cannot constitute evidence of an in-service stressor. Moreau
v. Brown, 9 Vet. App. 389, 396 (1996). Significantly, there
is no indication that Dr. Mujica had any source of history
other than the appellant. Cf. Reonal v. Brown, 5 Vet. App.
458, 460 (1993) (physician's opinion in reliance on history
from veteran not material evidence of occurrence in service
of alleged event).
Regarding other diagnoses of PTSD, where the appellant is not
a veteran of combat, and his alleged stressors are not
corroborated by credible evidence, there is little difference
in legal effect between the medical reports diagnosing PTSD
without relating the diagnosis to events in service, as with
the January 1994 statement from the appellant's treating
psychiatrist, and those medical statements that attribute the
diagnosis of PTSD to a vague or even specific, but
uncorroborated, stressor.
The OR-LLs secured from USASCRUR in September 1995 show only
that there was combat in the area in which the 4th Infantry
Division saw service between April 30 and October 31, 1968,
and that certain units of the 4th Infantry Division were in
combat. The appellant has specifically testified that he
spent the last nine months of his second tour in Nha Trang,
and service personnel records submitted prior to the March
1991 Board decision showed his second tour ended in September
1969. Correlating his testimony with his service records
shows he was in Nha Trang from about January 1969. The
veteran has also reported on VA examination in October 1987
that he began his second tour of duty in Vietnam in Cam Rahn
Bay, from which he went very shortly to Nha Trang for a brief
period. His service personnel record shows his assignment to
the 129th Maintenance Support Company began on October 4,
1968. The OR-LL show Nha Trang was the base camp for IFFV,
and the air base there came under fire on three occasions in
September 1998. Two of those occasions were before the
veteran's second tour of duty in Vietnam began, and the third
was on the afternoon of the first day of his second tour of
duty (September 22, 1968). It must necessarily, then, have
been at a time when he was elsewhere, as he has said that he
first went to Cam Rahn Bay. The OR-LL do not provide
evidence of the appellant's exposure to combat.
The appellant marked in the margins of the OR-LLs to indicate
that he was at certain places at certain times. To the
extent the annotations were submitted to show the appellant
engaged in combat or experienced the carnage he reported as a
combatant, the allegations are inconsistent and contradictory
to his earlier testimony, and thus for the reasons stated
above, incredible. His testimony does not gain credibility
or establish that he engaged in combat because he made notes
in the margins of a historic document that he obtained after
his initial testimony implying the time and place of the
alleged reconnaissance missions in Vietnam.
The record in this case is distinguishable from that in
Suozzi v. Brown, 10 Vet. App. 307 (1997), in which the
appellant first described his experience in detail, then
produced records tending to corroborate his accounts. In the
instant case, the appellant has made either vague reports of
events, such as placing himself in an area of operations
generally, or has alleged his performance of duties the fact
of which was previously rejected by the Board. Moreover, in
Suozzi, the specific allegations of the claimant as to events
of a specific date were consistent with his duties as a
clerk, and he produced new and material evidence showing the
occurrence of events consistent with those duties and his
allegations. In the instant case, the appellant has not
alleged activities consistent with his officially assigned
duties. The appellant's variations in reports of where, when
and with whom he was on reconnaissance missions or other
duties tend to diminish rather than enhance his credibility.
It is clear that the appellant's reports have several
elements that he combines and recombines. The OR-LLs are not
probative of the appellant's involvement in any of the
actions reported therein or of his exposure to any of the
stressors he has reported.
Although the OR-LLs in conjunction with the appellant's DA
20, which shows his assignment to the 4th Infantry Division,
reveal the appellant was in a highly combatant area, they do
not confirm his participation in any of the various missions
or duties he has reported, nor do they offer evidence that he
sustained psychic trauma in those places at those times.
The March and November 1996 and the December 2001 statements
from the VA hospital administrator reporting comments from
the veteran's medical record, and the July 1996 statement
directly from the appellant's attending physician, are new,
but in the same posture as Dr. Mujica's opinion. The
statements opine a connection between the diagnosed PTSD and
the appellant's military service, specifically, as in the
July 1996 statement, combat exposure during the Tet offensive
when Pleiku was overrun. These medical statements, like Dr.
Mujica's opinion, are based on history provided by the
appellant. They are after-the-fact opinions of medical
nexus, which cannot constitute evidence of an in-service
stressor. Moreau, 9 Vet. App. at 396.
The VA PTSD evaluation of November 1996 has the first
instance of the appellant's explicit allegation that his MOS
during his first period of service was infantryman (11B).
The appellant's DA 20, which showed his MOS, his awards,
decorations, and other administrative records, are all
consistent with his duties being as he initially reported
them, i.e., a cook, and not as represented by the appellant
in November 1996. His allegations of a combat MOS are
patently contradicted by the official record, and his
assertions that he engaged in one of the most highly
specialized infantry operations, Long Range Reconnaissance
Patrol, is not credible. The assertion or implication that
he served as a cook on such light-geared, fast-moving patrols
merely heightens the incredibility of the testimony.
The appellant also stated he saw a friend, a first sergeant,
killed in front of him at Pleiku. That statement is a
variation on testimony first put into the record in November
1985, when the death of his friend was reported as occurring
while in a convoy, and much modified thereafter, to include
having been modified to reflect that the friend was not
killed, but wounded, and that he did not actually witness the
wounding, but saw his friend several days later. The CRUR
could not corroborate that death or wounding in action. The
inconsistency of the appellant's account combined with the
lack of official corroboration is overwhelming evidence that
the event did not happen.
The appellant also reported shelling and bombing on Dragon
Mountain and pulling perimeter duty during which he had to
set Claymore mines. The Board rejects this report as
evidence of participation in combat, because such duty is not
reflected in the appellant's personnel records nor is it
consistent with his initial, credible reports of his duties
in Vietnam. 38 U.S.C.A. § 1154(a) (West 1991); 38 C.F.R.
§ 3.303(a) (2001).
A January 1997 letter from the RO informed the veteran of the
potential for verifying his allegations that various events
occurred through official sources. The letter requested the
veteran to provide the dates, places, and descriptions of
alleged stressful events, his unit of assignment to the
company level at the time, other units involved, names,
ranks, and units of any involved persons killed or wounded in
action, and any other details he could provide. In April
1997, the RO requested NPRC and the appellant to provide
copies of Morning Reports for the time the appellant had
identified as significant to his claim.
The February 1997 VA examination report included the
examiner's statement that he reviewed the available records.
Apparently misconstruing a prior Board decision, the examiner
noted the Board had found the appellant was not in Vietnam in
the places he reported at the times he reported. The
appellant provided yet different versions of alleged combat
activities, which the Board finds incredible. His report of
combat in Pleiku City in March 1968 to "get the Viet Cong"
who had infiltrated the city must be deemed inherently
incredible, because it is contradicted by the official
record; the OR-LL furnished in February 1987 showed that
fighting ceased in Pleiku City on February 7, 1968. Thus,
the February 1997 examiner's conclusion that the veteran's
PTSD was not due to events in Vietnam was not completely
tainted by the misunderstanding about the fact of the
appellant's service in Vietnam. To the extent that the
specific stressor the appellant reported to him could not
have happened as reported, the examiner's conclusion, that
the appellant's PTSD was not due to the event reported by the
appellant, was correct.
The appellant elaborated on the November 1996 report of
setting perimeter mines when he first arrived at Pleiku in
June 1967. He reported his fear of being shot by either the
enemy or his own side. This account is likewise inherently
at odds with both his service personnel record of having been
a cook and his accounts, previously of record, of no combat
experience in Vietnam.
The morning reports presented by the appellant in April 1997
are uninformative about the appellant's exposure to stressful
events in service. They merely corroborate that in February
1968 he was assigned to Headquarters and A Company, 704th
Maintenance Battalion, 4th Infantry Division. The reports
are probative only that he could not have experienced a
stressor in combat in Vietnam during the two week in February
1968 when he was on leave.
The April 1998 testimony before the undersigned reiterated
that he went on patrols, but he reported a different location
and unit of assignment for them than he had previously
reported. The testimony does not provide a basis to alter
the finding that he did not in fact go on reconnaissance
patrols at all. To the contrary, the inconsistency with and
contradiction of his previous and oft repeated testimony that
he was a cook who did not experience combat conditions, and
the lack of corroboration of the unit assignment reinforce
the finding of incredibility.
The appellant testified at length about his exposure to dead,
burned, and dismembered bodies. He reiterated October 1987
testimony about gunships burning areas of Pleiku where
prostitutes lived and November 1985 testimony about the
overrun of Pleiku in February or March 1968. His testimony
about the time of events in Pleiku is contrary to the
historical fact as noted in the OR-LL for the period. As the
CRUR stated in its September 1995 letter to the appellant,
only specific incidents of events involving identified
persons can be corroborated.
The Board does not find the appellant to be reporting
discrete events in his change of the alleged location of
certain events from Camp Holloway to Camp Enari, especially
given that he has produced no evidence to place him at either
camp at any specific time. The testimony about assignment to
an artillery support crew also is not credible as evidence of
his engagement in combat absent credible corroboration.
Nothing in his military record reflect training in artillery
support. The testimony that he saw in Germany or France the
man he previously reported seeing killed in action is not
relevant to his claim. The Board does not find the
uncorroborated, undetailed testimony of the appellant
credible evidence of the occurrence of a stressor in Vietnam.
The Board does not find the appellant's testimony about
participation in combat and stressful experiences in Vietnam
to be incredible only because he alleges activities
inconsistent with his MOS. See Dizoglio v. Brown, 9 Vet.
App. 163, 166 (1996) (engagement in combat with the enemy is
not necessarily determined simply by reference to the
existence or nonexistence of certain awards or MOSs). The
Board finds it incredible also because of its contradiction
of and inconsistency with prior testimony found credible for
the reasons stated above and because the collected OR-LLs of
record do not even actually pertain to the appellant's
assigned units during either period of service.
The appellant has produced a single piece of evidence, M.
W.'s October 1998 statement, to corroborate his assertions
that he engaged in alleged activity in Vietnam. Without a
presumption of credibility, it is not credible, and hence not
satisfactory, evidence of the fact of the appellant's
engagement in combat, or of exposure to any of the events
subsequently deemed stressors by the physicians who have
diagnosed PTSD.
First and foremost, it is not credible that the appellant
waited 14 years from his September 1984 initial claim for
service connection for PTSD to produce this statement, when
the writer reported in 1998 that he had known the veteran for
15 years. By letter of October 12, 1984, VA requested the
appellant to produce statements from persons familiar with
the circumstances of his service in Vietnam. He waited 14
years to produce purported corroboration of his testimony by
a person who asserts that he was a close friend of the
appellant's in Vietnam and during the entire time the
appellant prosecuted multiple claims and attempts to reopen
the claim. He waited 14 years, during which time VA
repeatedly informed him that his claim was denied for lack of
independent corroboration, and during which time he
diligently sought corroboration of his alleged stressors from
other sources. If M. W.'s report of the appellant's 1969
statements, or of his friendship with the appellant in
Vietnam and of his renewal of that friendship during the 15
years prior to writing his statement were genuine, it is
reasonable to conclude that the appellant would have
proffered such a statement from M. W. long before this.
Second, M. W.'s statement is not sworn. 38 C.F.R. § 3.200
(2001). Third, the unit designations reported are at too
high a level to persuade the Board of the writer's and the
appellant's service together. Fourth, the appellant's
alleged comments in Vietnam, as reported, are too vague to be
credible evidence of specific stressors. Finally, even if
the appellant said, in 1969, what the statement in 1998
attributes to him, the statement is not independent
corroboration that the appellant experienced combat or any
particular stressor. At most, the statement is a report of a
30-year old recollection of a conversation or conversations
concerning reported events not witnessed by M.W.
Consequently, the October 1998 statement by M. W. neither
establishes that the appellant is a veteran of combat with
the enemy within the meaning of 38 U.S.C.A. § 1154(b), or is
otherwise more likely than not to have had the experiences he
has alleged to be the stressors precipitating his PTSD.
In sum, the preponderance of the evidence of record presents
a picture of a non-combatant Vietnam veteran who served as a
cook and who did not engage in combat with the enemy or
experience combat-related carnage, and readily said as much
until about October 1981, when he began reporting an ever-
changing and evolving account of participation in heavy
combat in many places and in multiple capacities. These
accounts are uncorroborated in the official record, and the
lay statement offered as corroboration is both inadequate for
the purpose and is itself not credible.
The Board concludes that the appellant is not a veteran of
combat whose testimony must be deemed credible unless
rebutted by clear and convincing evidence. 38 U.S.C.A.
§ 1154(b) (West 1991); 38 C.F.R. § 3.304(d), (f) (2001). He
has not otherwise produced credible evidence of such
probative value as to create equipoise in the evidence for
and against finding that he experienced PTSD-precipitating
stressors in service. 38 C.F.R. § 3.304(f) (2001). In the
absence of credible evidence that the appellant had PTSD-
precipitating stressors in service, the multiple diagnoses of
PTSD and their attribution to events in Vietnam are not
probative that the appellant's PTSD is a disability resulting
from disease or injury incurred or aggravated by service.
Moreau, 9 Vet. App. at 396; 38 U.S.C.A. § 1110 (West Supp.
2001); 38 C.F.R. § 3.303(a) (2001).
ORDER
1. As new and material evidence has been presented or
secured, the claim of entitlement to service connection for
PTSD is reopened, and to that extent, the claim is granted.
2. Service connection for PTSD is denied.
J. SHERMAN ROBERTS
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.